This transcript has been auto generated
00;00;02;11 - 00;00;24;07
Tom Godar
Hello and welcome to the Labor Law Insider podcast. I'm your host attorney, Tom Godar, and I work with Husch Blackwell and have been involved in labor law for more than four decades. I'll tell you what, there has been a wild ride over the past three and a half years of the Biden administration. He fulfilled his promise to be the most union friendly president ever.
00;00;24;17 - 00;00;50;25
Tom Godar
And as a result, between General Counsel Abruzzo and the National Labor Relations Board, there's been a sea change in the way that labor law has been interpreted and applied. So we will have guest to discuss what's new, what's challenging and what might be the ways in which our friends, our clients and others advising companies might do to accommodate these changes in the labor law world.
00;00;51;00 - 00;00;55;24
Tom Godar
It's a wild ride, so buckle up and come and join us on the Labor Law Insider podcast.
00;00;57;22 - 00;01;15;15
Rebecca Dormon
And I just stopped and I was quiet and the employer asked me if I was still there because it should be a question that was easy to answer. But based on reading these file notes about things that had gone on, I told the employers attorney, I said, There's something a little confusing here. Can I call you back?
00;01;16;06 - 00;01;40;24
Tom Godar
The voice you just heard is that of a true labor law insider. Until just a month or so ago, Rebecca Dormon was the assistant regional director of the National Labor Relations Board 15th Region, and she has some remarkable information to share and a story to develop. And that's what we're going to do today on the Labor Law Insider.
00;01;41;22 - 00;02;08;21
Tom Godar
We're joined not only by Rebecca, but by my colleague and my friend Megann McManus. Megann herself is an insider in the labor law world as she was an intern at the National Labor Relations Board, but also worked for a labor union as its personnel director. It's fabulous to have Megann with us. And Megann, I'm going to leave it to you to introduce Rebecca, but thank you for joining us once again, Megann.
00;02;08;22 - 00;02;51;01
Megann McManus
Thank you so much, Tom This is always a pleasure to be on this podcast. Thank you so much. And as you said, today we come with a really wonderful special guest, Rebecca Dormon. Welcome, Rebecca, to the Labor Law Insider. We are thrilled to have you as our special insider. If you are not an insider, I don't know who would be. A 25 year veteran of the National Labor Relations Board holding positions in D.C. and at the regional level, the last position held since the regional director and Region 15.
00;02;51;20 - 00;03;19;19
Megann McManus
And thank you so much for agreeing to come on the podcast and talk about a very brave stand that you took when you saw some misconduct happening with respect to mail ballot elections. And I'm so looking forward to delving into that story and hearing what happened with elections and hopefully what happened to reform that process after the fact.
00;03;19;19 - 00;03;32;17
Megann McManus
But I want to start by having you introduce yourself and tell us about your background and what your path was to labor relations.
00;03;32;26 - 00;03;53;10
Rebecca Dormon
Thank you, Megann and Tom, to you both. Thank you both for such a wonderful introduction. And thank you for having me. You all are absolutely fabulous, and I always enjoy working with you all in any capacity. I've worked with Megann in a couple of different capacities and I look forward to working with her in the future. But yes, I am strangely originally from Alabama.
00;03;53;13 - 00;04;18;17
Rebecca Dormon
I went to school, undergrad and graduate school at Ole Miss. In my last semester at Ole Miss, the NLRB in Memphis came down and gave a talk and I'd never even heard of it. Labor union. It'd be quite honest. They're not so prevalent in the South, but it fascinated me to hear about these investigations and about strikes, lockouts, elections.
00;04;18;27 - 00;04;42;05
Rebecca Dormon
It just seemed like such a fascinating career path that I chose to apply for the job and that was it actually ended up being my dream job. It took the government a while to hire me. Memphis lost authority to hire, but their acting regional director in Memphis was the acting regional director. Also in New Orleans, and he just transferred the authority because he really wanted to hire me.
00;04;42;18 - 00;05;06;28
Rebecca Dormon
And I so I ended up getting hired in New Orleans in August after I graduated in May. And I went down and I said, Can I go with the office in New Orleans? And they said, sure. And I went down there, liked it, and said, okay, started and all my second day there, I got a petition. Once I got that petition and it just stipulated election agreement, read the manual, taught myself and did my first election.
00;05;06;28 - 00;05;35;24
Rebecca Dormon
I was hooked. I did lots of investigations, but I spent the majority of my career working our cases strange, our cases, doing elections, doing hearings, doing both pre and post election, investigating objections. But like we said, we're also with UPS in there, but our cases are definitely my specialty. And then I would start off as a field examiner and then went to I was a field examiner in New Orleans for a few years, and then I transferred to the D.C. resident office for a couple of years.
00;05;36;05 - 00;05;55;07
Rebecca Dormon
And then after I'd been there for a couple of years, I decided to transfer back to New Orleans. So I transferred the week in Katrina hit, which was a wonderful time to transfer. We came back five weeks after Katrina hit to the office, which was across the street from the Superdome. And then I worked there as a field examiner until I was promoted in to that.
00;05;55;09 - 00;06;14;04
Rebecca Dormon
I was acting supervisory field examiner starting in 2014 full time, starting in 2015, acting Assistant Regional Director starting in 2016 and officially the Assistant Regional Director in 2017 until my resignation very shortly, roughly just a month ago.
00;06;14;29 - 00;06;17;01
Megann McManus
Thank you so much for that.
00;06;17;01 - 00;06;18;07
Tom Godar
Thanks for that background.
00;06;18;12 - 00;06;40;13
Megann McManus
I'm so glad that you focused on the fact that you said you were, you know, sort of an expert on elections. I didn't realize that throughout your career that you had spent a majority of the work that you were doing at the regions on our cases. So that gives an extra interesting context to what happened to later on.
00;06;40;13 - 00;07;05;11
Megann McManus
But you are particularly qualified, right, to speak on this topic of elections, having worked our cases for so many years. And so I think this is a good time to turn the conversation to NLRB elections. And like Tom said, we don't you know, we're an insider podcast. We spend a lot of time talking about, you know, the details of what the NLRB is.
00;07;05;11 - 00;07;33;26
Megann McManus
But just in general, as I'm sure all of our listeners know, you know, the NLRB conducts elections to determine whether or not employees want to be represented by a union. And they do that either by in-person elections or by mail ballot. And mail ballot elections have certainly happened. I don't know. Rebecca, how long have mail ballot elections been around?
00;07;33;28 - 00;07;34;27
Megann McManus
Do you know?
00;07;34;27 - 00;07;59;12
Rebecca Dormon
They were around my entire career use more sparingly at the beginning. And we also sprinkled in I decided that mixed manual instead of a full mail ballot. If we could figure out a way to do a mixed manual, if we had a central facility or a shift that was centrally there where everybody else is scattered, then anything I could kind of figure out where I could get some people in person and cut down on the number of mail ballots.
00;07;59;28 - 00;08;18;05
Rebecca Dormon
And this is even pre-COVID. I would do that in my stipulated election agreement. So the parties actually kind of liked it because they would get a good feel for how many people had turned out at the central location as opposed to the mail ballot, because these aren't supposed to know until the day of the count how many mail ballots have come in.
00;08;18;19 - 00;08;40;21
Rebecca Dormon
Obviously, during the pandemic, mail ballots increased because of the COVID restrictions that went into place. And unfortunately, after COVID ended, I cannot say nationwide that region stopped using mail ballot. They still probably did it a little bit more than they should have. But it's of course, up to the regional director in each region as to whether a mail ballot is appropriate.
00;08;41;27 - 00;08;58;22
Tom Godar
Rebecca, you talked about at least the impression was you had a preference for in-person ballots, but recognize that sometimes mail ballots were appropriate in order for remote workers to have an opportunity to vote. What's the sense that in-person ballots might be more appropriate in most circumstances at.
00;08;58;23 - 00;09;18;16
Rebecca Dormon
The NLRB based on literature and information? Say that in-person manual elections are the gold standard. And so once I knew it's the gold standard, then that's what I tried to achieve every time, or at least achieve it as best as I could because we didn't want to disenfranchize any voters. So occasionally it did have to be mixed manual.
00;09;18;16 - 00;09;47;27
Rebecca Dormon
And occasionally there really was a reason for mail ballots. Truck drivers or one of my last elections I set up just a couple of weeks before I left the board. There were 11 employees scattered around the state of Louisiana with one employee in 11 different locations. So which was almost impossible. You know, I would set up a traveling election if I could and did that several times where we would travel throughout a day or two days to two, three, four different sites around the state, if I had groups of employees.
00;09;48;13 - 00;09;57;21
Rebecca Dormon
But and so we could continue to do a manual election. But if they are too scattered and it is only one at a time, then that becomes a mail ballot. But why not keep the NLRB on gold standard?
00;09;58;05 - 00;10;22;07
Megann McManus
You mentioned, Rebecca, that, you know, obviously when COVID 19 happened and we are all, you know, quarantined and working remotely, the mail ballot election became the norm. There was a period of time I don't think that there were any in-person elections happening. Is that true?
00;10;22;11 - 00;10;46;25
Rebecca Dormon
That is true. There were no in-person elections happening in Oraibi and put in percentages of what the COVID positivity rate was. And they were so high that it was almost impossible to meet, at least especially in the South where people didn't mask as much. And it was pretty prevalent down here. I would go run an election even if the percentage was too high.
00;10;47;04 - 00;11;06;26
Rebecca Dormon
I do know of an election I've set up and the percentage started off and it was low enough and then it went up above the percentage set forth by the NLRB. But I went and ran it in person anyway because the parties begged me to do so. It was already set up. The employees were already ready. I wasn't really concerned about the COVID rate.
00;11;07;07 - 00;11;18;21
Rebecca Dormon
I couldn't make a bargaining an employee go do it. But if I wanted to put myself out there, I could. But there was probably about six or eight months region. I can speak for Region 15 that we did not run any in-person elections.
00;11;19;10 - 00;11;35;27
Megann McManus
All of the practitioners out there will certainly remember going through those factors that the board had established in order to get a in-person election. The the case name, I'm not sure if I'm pronouncing it right a spurious, spurious.
00;11;36;27 - 00;11;39;14
Rebecca Dormon
I'm not sure Speers can walk it.
00;11;39;14 - 00;12;04;16
Megann McManus
Yeah. So yes well that world actors. Oh my goodness. How many times did I go through that and then remotely walk the board agent through the voting space and show them how we were going to be able to social distance and all of the PPE that we were going to provide and how all of the, you know, disposable single use golf pencils and all of that.
00;12;04;16 - 00;12;49;17
Megann McManus
And there was an in-person election that we were able to get, I think, at July of 2021, which I think was still pretty early. But I think as early as that time they were happening. But it seems you say that the manual ballot was the gold standard, but it did seem like once COVID happened and mail ballots were very frequent and became sort of the norm, even after COVID infection rates dropped off 2020 to 2023, it seemed to me, and I think other Labor practitioners, that it was no longer the position of regions, that mail ballot was a gold standard.
00;12;49;17 - 00;12;59;07
Megann McManus
Do you agree with that statement and do you have any insider insight of what was happening and why that was the case? If that's if that's true.
00;12;59;24 - 00;13;05;07
Rebecca Dormon
When you said mail ballot as the gold standard, did you mean manual or manual? Just to make sure I'm sorry. I just want.
00;13;05;08 - 00;13;18;20
Megann McManus
To make sure. I mean, first. No, no, no, no, no. Of course, of course. Of course. That manual ballot or as is the standard. And so if that's true, what changed and what was happening, at least in your region.
00;13;19;04 - 00;13;59;16
Rebecca Dormon
Regions? In my region, I still strangely, even as a manager, I worked all the petitions myself and I still believe in gold standard manual elections. So I would have to say Region 15 did more in-person elections than most. We had to convert a couple. The regional director just overrode me when the because we set it up and the Senate, it was kind of close to the NLRB standard and then it rose above and the regional direction would override makes the regional directors in all the regions keep they have the discretion to decide whether or not even to change an in-person election to a mail ballot election.
00;13;59;27 - 00;14;19;04
Rebecca Dormon
And a lot of regions got used to mail ballot elections, which are easier for board agents in as much as nobody has to go out of town. And border agents were still nervous about staying in hotels. Even though COVID rates had dropped, they were still nervous about going to facilities. They kind of gotten used to working from home.
00;14;19;15 - 00;14;46;20
Rebecca Dormon
Regions were understaffed and it was just we could use one of our offices, which are clerical staff, to mail out the ballots. And then I region I think was one of the first ones. We did a hybrid camp where I gave the parties an opportunity to come into the region or a steel mill, south Alabama. But the employer requested to come in and watch the mail ballots be counted in person.
00;14;46;20 - 00;15;07;24
Rebecca Dormon
We considered it and considered it. We put the covered standards into place. We started to social distance. We didn't put them all into place. And I let both parties come in. But the union chose not to. I found actually unions are choosing not to come in and unions are actually are used to it as well. Not only do the regions get used to it, but the unions got used to it.
00;15;07;24 - 00;15;29;08
Rebecca Dormon
I even had a couple of unions asked to participate in the hearings by Zoom because everybody just kind of got used to that standard and it seemed easier at that point. But I still believe once we could meet the NLRB's criteria, or even if it was closed or for a big election or anything else, manual is still gold standard.
00;15;29;08 - 00;15;33;15
Rebecca Dormon
It just the best way to control and ensure the laboratory conditions stay in place.
00;15;34;14 - 00;15;54;21
Tom Godar
You know, at one point, Rebecca, obviously you thought that some of the mail ballot activities were out of whack. I'm not going to steal your thunder. Let's pivot now and talk a little bit about the turn that your career took as you recognize that there were, in your estimation, some problems with the board procedure with regard to mail ballots.
00;15;54;28 - 00;16;20;28
Rebecca Dormon
I've got to be on a national case team or a large employer that sells coffee in their colors green in case people don't know or consistency. The NLRB put together a national team, and so I was working with regions all across the country. There was one particular election mail ballot election. I worked usually up until this step, and once we got the step then I would back out.
00;16;21;09 - 00;16;48;23
Rebecca Dormon
It was up to the region or if we had a hearing, I'd hold a hearing. And then once the reelection hearing was held, then I'd also back out. The region ran the election. I was on to the next and in this case, the company’s attorneys called Region 14 personnel during the mail ballot to ask a question because a wrong voter list had been used and they had to make some amendments and things had to be mailed and various things had gone on.
00;16;48;23 - 00;17;18;11
Rebecca Dormon
And they called to ask a very legitimate question to Region 14 personnel based on this amended list and what had been mailed out and what had been done. And it's one that the board should be able to answer. It's information that the region should be able to confirm that ballots that had been sent back out to the people who were accidentally left off, we don't have to say if they'd been returned, but we should be able to confirm that they were mailed and they couldn't get any region 14 personnel on the island, which is the region in which what's going on.
00;17;18;26 - 00;17;48;22
Rebecca Dormon
So they called me because I'd worked the step and I said, Sure, I'll just look, let me look in next gen, which is our electronic case management system because I can see any case there. So I typed it in and I read some of the file notes and I just stopped and I was quiet and the employer asked me if I was still there because it should be a question it was easy to answer, but based on reading these file notes about things that had gone on, I told the employer's attorney, I said, There's something a little confusing here.
00;17;48;23 - 00;18;14;27
Rebecca Dormon
Can I call you back? And I saw a concern in file notes that there had been ex-parte communications with the union's attorneys, that the union's attorneys had been able to request voters to come in and vote in person and the regional office requests were granted. It says mail ballot in the stipulated election agreement. Also, one party should not have access that the other party didn't.
00;18;14;27 - 00;18;36;16
Rebecca Dormon
If the region wants to alter the letter, both parties should be contacted so that if the employer's attorney wants to call and gain access for voters who say, I'm concerned my mail ballot won't get back in time to be counted, can I go in and vote to the regional office and vote? Is there something I can do? Both parties should be afforded the same opportunity because we are supposed to be neutral.
00;18;36;16 - 00;19;02;29
Rebecca Dormon
We are not. We are pro employee. We are not pro employer, not pro union pro employee and so then I called the regional director and I told her, I just read your file and there are some big problems with it. I would highly suggest you rerun the election. She told me no. So I called the Inspector General and turned the conduct into the inspector general.
00;19;04;00 - 00;19;23;24
Rebecca Dormon
He told me that that was outside his purview. He doesn't handle rules and regulations and following policies. He handles malfeasance and stealing and other things like that, not policies. So I said, okay, fine, because I'm the one who has to be able to sleep at night. Look at myself in the mirror and I joined the NLRB for a reason.
00;19;24;12 - 00;19;52;03
Rebecca Dormon
Pro Employee We don't play favorites, we enforce laws. And so I had to make a big decision as to whether I would expose the agency or not, but I have to live with myself. So I called the company’s attorneys and I said, let me tell you what happened. And I told them exactly what went on. And I think their mouths fell open.
00;19;52;03 - 00;20;07;04
Rebecca Dormon
I knew what that meant with my agency, but as much as I loved working for the NLRB, I have to have a good conscience. I have to be able to live with myself, and that includes doing the right thing. I couldn't lie to the employers.
00;20;07;04 - 00;20;32;10
Tom Godar
Attorney Wow, just the expression in your voice tells a tale. As you moved through that circumstance, did you discover other areas in which you felt there were improprieties or stretching the the rules and the expectations of the board? Regional decisions on elections, on mail elections in particular.
00;20;32;10 - 00;21;03;09
Rebecca Dormon
I did I received a subpoena from the House Education and Workforce Committee to ask for all irregularities across the country. So I spent a week and read every single file for every election to hunt for anything, any lack of memos, any memos that suggested behavior that did not comport with our policies and procedures, any irregularities.
00;21;03;22 - 00;21;21;18
Rebecca Dormon
And I turned over 550 pages of documents regarding don't tell me the exact number, but there might have been 40 ish cases in which it went on all across the country. We had the least number of elections. So can I can I plug my region and say we had we didn't have any irregularities?
00;21;22;17 - 00;21;34;01
Tom Godar
And I looked at the report congressional or at least the summary of it. And there were 15 regions and Region 15, however, was not among those regions. So kudos to you and your team in that region.
00;21;34;01 - 00;21;50;28
Rebecca Dormon
Thank you. I did actually in fairness, I actually combed our cases even though I supervised our cases and I was highly involved just in case something went on. I did comb our regions because it was not fair also to leave our region out. If we had done something, I was going to turn us into.
00;21;51;27 - 00;22;02;25
Tom Godar
Well, Megann, you know, you're on the side, not on the board anymore, but you're advising employers. What would you have been thinking when you got the call from Rebecca saying, here's the answer to your question and I'm uncomfortable sharing it with you?
00;22;02;25 - 00;22;41;19
Megann McManus
When we were, you know, in the mode of all male ballot elections, all the time, there was this sense that, you know, how can it be that these elections are being run to the gold standard as closely as possible? When we were hearing things like, you know, regional staff are working from home and they're printing ballots at their house and mailing them at their house and, you know, from the room and, you know, those kinds of things that we knew about.
00;22;41;19 - 00;23;09;11
Megann McManus
Right. So I we had a lot of reason to believe that there could have been a lot of checks and balances falling through the cracks, shall we say, and without any way to know. Without any way to show it. And which is always why we would certainly argue and try for manual election that happened, you know, in front of everyone.
00;23;09;11 - 00;23;45;21
Megann McManus
So I would have felt like, oh, someone is telling me what I hoped wasn't true, but I feared might be happening. But I certainly would not have thought that it was happening to the degree that it was ultimately revealed to have happened. I to read the report, I saw all the regions that were implicated, think it was over, you know, 33 different elect representation election cases.
00;23;47;05 - 00;24;26;21
Megann McManus
Yeah, over 500 pages of documents. I saw the secret in-person voting in LRB offices. That was very, very shocking to me as a practitioner. And I'm very curious to know from you, Rebecca, as a, you know, at the board for 25 years specializing in our cases and you see what you see, how shocking is that relative to all of your experience up and to that point, it seems like your jaw was on the floor and you were like, I have never, never have I ever.
00;24;26;21 - 00;24;32;02
Megann McManus
But is that fair to say that this was just really shocking to you as well?
00;24;32;02 - 00;24;54;05
Rebecca Dormon
Absolutely, Meghan. It was completely shocking to me. And if we're being completely honest, it made me sick to my stomach. When I was hired in New Orleans, I was trained by the assistant regional director at that time, and anytime I asked him a question, he said, Have you read the manual? What does the manual say? I was not as thankful for it back then, but I am today.
00;24;54;11 - 00;24;56;11
Rebecca Dormon
It was something I could not turn a blind eye to.
00;24;56;17 - 00;24;59;13
Megann McManus
It was such a drastic revelation.
00;24;59;27 - 00;25;23;28
Rebecca Dormon
It was something that was just completely unheard of and nothing in any manual provides for it. Nor is it, even if you think about it ethically right or I mean, you can't have ex parte communications in any sort of trials, any sort of legal proceedings. And in an election we are not supposed to be pro employer or pro-union.
00;25;23;28 - 00;25;43;01
Rebecca Dormon
We are pro employee. While it doesn't mean to disenfranchize them, it means to do it by legal means. And there were a couple of things wrong that happened in there, like there had to be an amended voter list filed. There had to be some people got some ballots late. But there are other ways to deal with it, such as the people who got ballots in that case two weeks late.
00;25;43;19 - 00;26;16;22
Rebecca Dormon
What they could have done is just extend the voting by two weeks so that those employees would have the same amount of time to vote as everybody else. But at that point, you pick the phone up and you call both parties and you say, this has happened. How can we deal with it in a way that's palatable for both parties, in a way that we can agree upon and in a way that is pro employee so that none of them are disenfranchized you do not fix it by going to one side and having conversations and fixing it that way.
00;26;17;21 - 00;26;44;23
Tom Godar
Rebecca, thank you so much for sharing that part of the story that really emerged from checking on what should have been a mundane phone call as to the process of a particular election. Instead, you discovered that things which are, quote, not in the manual are taking place. The next part of the story, of course, moves on to you're feeling so strongly about it that you felt you had to share the story to become, as they say, a whistleblower.
00;26;45;05 - 00;27;12;01
Tom Godar
Let's continue our discussion with Rebecca and with Megann regarding these next steps. The the hard choice and the outcomes of Rebecca stepping into the world of becoming a whistleblower at the National Labor Relations Board. Thank you so much for joining us with part one of the Labor Law Insider. And in part two, we'll hear more of Rebecca's story as she emerged, unfortunately, because of her convictions as a whistleblower.
00;27;12;10 - 00;27;24;05
Tom Godar
A hard place for any of us to be. Thank you again, Rebecca. Thank you again, Megann, and thank you for joining us for this part one of the Labor Law Insider podcast.